Court File and Parties

Court File No.: 8900/12
Date: 2013/10/02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Rheo Thompson Candies Limited (Plaintiff)

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Marni Thompson, Alvin Bolkovic and M. Thompson Chocolates (Defendants)

Before: Justice H. A. Rady

Counsel:
David A. MacKenzie and Stephanie Legdon, for the plaintiff
Simon J. Adler and Nolan Downer, for the defendants

Heard: Submissions in writing August 13, 27 & 28, 2013

COSTS ENDORSEMENT

[1] I have received and reviewed the parties’ costs submissions. The defendants seek their costs of the plaintiff’s unsuccessful motion for an interim injunction. In my endorsement of July 10, 2013, I had dismissed the motion because I was not persuaded that the plaintiff had established irreparable harm. I also found that the balance of convenience did not favour the plaintiff.

[2] The defendants submit that they should receive substantial indemnity costs of $26,270.93 and they assert that such a scale is appropriate by analogy to rule 20.06. Had the plaintiff been successful, from their perspective the lawsuit would likely have been over.

[3] I did find that there was a serious issue to be tried arising from the defendants’ marketing of a confectionary called a mint smoothie. The plaintiff also markets a similar product by that name.

[4] While the defendants did not concede there was a serious issue to be tried, I did not understand them to vigorously argue otherwise (correctly, in my view).

[5] The individually named defendants are the daughter and son-in-law of the plaintiff’s founders and there is at least some evidence that the defendants may be using the plaintiff’s protected recipe. I commented in paras. 13, 14 and 28 of my endorsement about why I was satisfied there was a serious issue to be tried.

[6] I recognize that as the successful party, the defendants are presumptively entitled to costs. And there is good reason to order costs payable forthwith on interlocutory matters unless the justice of the case suggests otherwise: Axton v. Kent (1991), 1991 7196 (ON SC), 2 O.R. (3d) 797 (Div. Ct.).

[7] For the reasons articulated in my endorsement and in particular, the paragraphs identified above, I consider that this is one of those cases that “the justice of the case suggests otherwise.”

[8] As a result, costs are reserved to the trial judge who will be in a better position to assess the defendants’ entitlement.

“Justice H. A. Rady”

Justice H. A. Rady

Date: October 02, 2013